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When One Spouse Sells the Family Home During a Divorce

California is a community property state. This means that everything acquired during the marriage is considered community property. The marriage starts from date of marriage and ends on the date of separation. If property is not characterized as community property, then it is characterized as one spouse’s separate property.

Regardless of the characterization of the property, once a Petitioner for Dissolution of Marriage is filed, the parties are restricted from doing anything with the marital property. When a party files a Petition, they also file and serve a Summons. On the back of the Summons are orders called automatic temporary restraining orders (“ATROS”). ATROS prohibit any party from disposing of or concealing any property. If the parties were to actually follow the ATROS, then there would be no concern about the sale of the family home. However, this is not always the case. In reality, there is really nothing to stop a spouse from engaging in the prohibited behavior of selling the home.

California Property Division

So, what should an innocent party do if they have discovered that their spouse has sold the house? If a spouse has sold the property without the other party’s knowledge or consent, the innocent party would need to immediately file a motion with the court to ask for an injunction or an order to prevent the guilty spouse from doing any further damage. The damage that can be done is, for example, the guilty spouse starts treating the sales proceeds as their own money and starts spending it. Another thing to consider should the innocent party file a motion is to ask for sanctions, to include attorney’s fees. Sanctions are sums of money made payable to the innocent spouse as a form of punishment for the guilty party’s illegal behavior.

During a divorce, it’s important to carefully monitor all assets to ensure the other party is not engaging in illegal behavior. In sum, unless the court orders or the parties mutually agree (stipulate), a community property home must never be sold before the divorce is finalized. If you have questions about your community or separate assets, schedule an appointment with an experienced attorney at Cage & Miles, LLP.